Sbresni v Commissioner of Police

[2016] QDC 18

DISTRICT COURT OF QUEENSLAND

CITATION: 

Sbresni v Commissioner of Police [2016] QDC 18

PARTIES:

KYLE ALEX SBRESNI

(Appellant)

AND

COMMISSIONER OF POLICE

(Respondent)

FILE NO:

D18/15

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Bundaberg Magistrates Court

DELIVERED ON:

29.1.16

DELIVERED AT:

Maroochydore

HEARING DATE:

29.1.16

JUDGE:

Robertson DCJ

ORDER:

1. Set aside the fines imposed by his Honour in relation to the two failure to stop offences.
2. In lieu, order that the defendant be released under the supervision of an authorised Corrective Services officer for a period of 18 months, and must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992, and report within 48 hours to an authorised Corrective Services officer at Bundaberg.
3. Order that the defendant perform 180 hours of community service from today’s date. The defendant must comply with the requirements set out in s 103(1) of the Penalties and Sentences Act 1992, and report within 48 hours to an authorised Corrective Services officer at Bundaberg.

CATCHWORDS:

APPEAL; OFFENCE OF FAILING TO STOP MOTOR VEHICLE PURSUANT TO S 754 THE Police Powers and Responsibilities Act 2000; where the appellant was fined $5,692.50 in relation to each failing to stop a motor vehicle offence; whether his Honour erred in his interpretation of s 754(2) of the Police Powers and Responsibilities Act; community based orders were a sentencing option; whether the Magistrate was bound to follow a decision of this Court; where his Honour regarded the decision as wrong.

Legislation:

Criminal Law (Criminal Organisations Disruption) Amendment Bill 2013

Penalties and Sentences Act 1992 (Qld)

Police Powers and Responsibilities Act 2000 (Qld)

Cases Considered:

Commissioner of Police Service Queensland v Magistrate Spencer and Others [2013] QSC 202

Forbes v Jingle (2014) QDC 204

House v the King (1936) 55 CLR 499

COUNSEL:

Allen, J. QC of Counsel for the appellant

Kelly, C. of Counsel for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Office of the Director of Public Prosecutions for the respondent

1. On the 2^nd of July 2015 in the Bundaberg Magistrates Court before his Honour Magistrate Simpson, the appellant pleaded guilty to two charges for failing to stop a motor vehicle, an offence under s 754 of the Police Powers and Responsibilities Act 2000, dangerous operation of a motor vehicle and possession of a small quantity of methylamphetamine.  All offences were committed on the 25^th of April 2015.  The circumstances of the offending are well summarised in paragraph 9 of Ms Kelly’s written outline on behalf of the Commissioner of Police and I will not repeat them.  Clearly, these were serious examples of the failing to stop charges and a fairly serious example of dangerous operation of a motor vehicle simpliciter. 

1. The appeal focuses in a practical sense only on the penalties imposed for the failing to stop offences.  In relation to the other offences, his Honour placed the appellant on probation and did not record convictions.  I am informed today by Mr Allen on the appellant’s behalf that he is performing well under probation and has not breached probation and is continuing to undertake drug counselling through a local agency in Bundaberg.

2. As can be seen from the transcript and his Honour’s decision, his Honour was not prepared to follow a decision of his Honour Judge Harrison in the Cairns District Court on the 17^th of December 2014, namely, Forbes v Jingle (2014) QDC 204 which in turn followed a decision of his Honour Justice Henry in the Supreme Court of Cairns reported as Commissioner of Police Service Queensland v Magistrate Spencer and Others [2013] QSC 202. Justice Henry’s decision was concerned with the predecessor of s 754 of the Police Powers and Responsibilities Act and in particular subsection (2), the minimum penalty provisions. 

1. In relation to the predecessor, his Honour in reviewing a decision of his Honour Magistrate Spencer, held that the penalty provision as then drafted did not exclude probation as a sentencing option. It is unnecessary for me to go further. Section 754 was amended by the Criminal Law (Criminal Organisations Disruption) Amendment Bill 2013 which came into force on the 17^th of October 2013.  In a practical sense, it added to the words in the minimum penalty provision considered by Justice Henry, the words “served wholly in a corrective services facility”. 

1. It was that provision that Judge Harrison considered in Forbes v Jingle, and he held that those words did not add or detract from the meaning as construed by Justice Henry; and held in that case on appeal by the complainant police officer, that the Magistrate was correct in holding that probation under the amended provision was still an option.

1. In this case, Mr Bray appeared before his Honour Magistrate Simpson in the Bundaberg Magistrates Court and submitted in a much more eloquent way than I can now summarise that his Honour was bound to follow the decision of Judge Harrison, and that in any event his Honour’s construction of the minimum penalty provision in s 754(2) of the Police Powers and Responsibilities Act was correct. 

1. As is indicated both in the transcript and in his Honour’s reasons, his Honour regarded the decision as not binding albeit persuasive, but took the view that his Honour was in error and he held that either the plain meaning of the words was that sentencing dispositions such as probation were not available to the sentencer, or in the event of ambiguity, the Attorney General’s view (not the view of Parliament as his Honour said) expressed in the second reading speech which is set out in paragraph 17 of Judge Harrison’s judgment, made it crystal clear that the interpretation he favoured was the correct one. 

1. Both of these rulings by his Honour were argued by Mr Allen QC in his written submission on behalf of the appellant filed on the 18^th of November 2015 to constitute errors, which in the House v the King sense, would enable this court to set aside the orders made and to resentence the appellant afresh.  In her written outline filed on the 18^th of December 2015 on behalf of the Commissioner of Police, Ms Kelly concedes that his Honour was in error in both respects. 

1. In my view, it would be inappropriate for me to go behind those concessions as the instructions to make those concessions came directly from the Commissioner of Police or his appropriate delegate. 

1. In proceeding to resentence, I do not comment on the legal issues that have been conceded to be errors by the respondent.

1. The appellant is still a young man. He is currently 21. His Honour expressed a view below that but for his view of the proper construction of the minimum penalty provision in s 754(2)(b), he would have considered the personal circumstances of the young man, despite the serious nature of the offences, to justify a probation order.

1. As Ms Kelly properly submits, this young man’s traffic history in particular is quite concerning, but his Honour was well aware of that at the time he imposed the sentences that he imposed.  His personal circumstances were set out before his Honour and apart from the additions to which Mr Allen has referred today, his situation has not changed.  There is no suggestion that he has reoffended nor has he breached probation.  He has also suffered significant consequences as a result of his stupidity and criminal behaviour. 

1. His motor vehicle was impounded and was subsequently repossessed by the finance company and sold and the appellant now owes $10,000 as a result of that and of course he has no vehicle.  He is presently receiving Newstart allowance and looking for employment and remains living in Bundaberg.  As his Honour was obliged to do, he imposed the minimum mandatory two year disqualification period and that order will not be affected by the orders that I make.  Given the personal circumstances of the offender and given his conduct since, it is appropriate in my view to take the same approach that his Honour would have taken below and that is to impose community based orders. 

1. Mr Allen holds instructions that his client will consent to combined probation/ community service order, and I agree with Ms Kelly that if his Honour had felt that his sentencing discretion was not constrained in the manner that he did hold, it may and probably would have led to a longer period of probation and I also intend to add community service.

1. On the basis of Mr Bray’s undertaking to inform the young man of the general requirements of the probation order set out in s 92 and the general requirements of the community service order which to some extent overlap set out in s 103 of the Penalties and Sentences Act 1992.  I set aside the fines imposed by his Honour in relation to the two failure to stop offences and in lieu, I order that he be released under the supervision of an authorised corrective services officer for a period of 18 months from today’s date and that he perform 180 hours of community service. 

1. There is no appeal in relation to the non-recording of a conviction. Accordingly, that part of the order remains unaffected.